A three judge panel of, from left, L. Todd Burke, Jesse B. Caldwell and Jeffery B. Foster confer in a case where Gov. Roy Cooper is challenging the General Assembly's authority to oversee some state agency's powers and appointments during a hearing held at a Campbell Law School courtroom in Raleigh, NC on Tuesday. Chris Sewardcseward@newsobserver.com

A three judge panel of, from left, L. Todd Burke, Jesse B. Caldwell and Jeffery B. Foster confer in a case where Gov. Roy Cooper is challenging the General Assembly's authority to oversee some state agency's powers and appointments during a hearing held at a Campbell Law School courtroom in Raleigh, NC on Tuesday. Chris Sewardcseward@newsobserver.com

Judges issue split ruling on NC governor-legislature power struggle

The N.C. General Assembly’s attempt to revamp the state elections board and ethics commission weeks before Democrat Roy Cooper was sworn in as the new governor violates the state Constitution, a three-judge panel ruled on Friday.

The judges also found unconstitutional the legislature’s shift of managerial and policy-making employees from former Gov. Pat McCrory’s administration to positions where it’s more difficult to replace them.

But the Republican-controlled General Assembly’s attempt to have a say in who joins Cooper’s Cabinet was not found to be a violation of the separation of powers clause in the state Constitution. To date, the state Senate has approved three of the appointments Cooper has made with hearings for others set for next week.

The rulings from Superior Court Judges Jesse Caldwell, Todd Burke and Jeff Foster come nearly two weeks after a daylong hearing inside a Campbell University law school courtroom.

Never miss a local story.

Sign up today for a free 30 day free trial of unlimited digital access.

“We’re pleased the trial court ruled two of these three laws unconstitutional, and we believe strongly that the Supreme Court ultimately will agree with us on all three,” Noelle Talley, a spokeswoman for Cooper, said in a prepared statement.

Shelly Carver, a spokeswoman for Senate leader Phil Berger, a Republican from Rockingham County, said the senator’s office was reviewing the judges’ ruling to determine whether any appeals would be made.

“It is encouraging the court recognized the plain language in our state’s constitution providing for a transparent confirmation process for unelected cabinet secretaries who control multi-billion dollar budgets and make decisions affecting millions of everyday North Carolinians,” Carver said in a statement, adding her disappointment over the rulings that went against the legislators.

The 42-page order is the latest in an escalating power struggle between the Democrat at the helm of the executive branch and the Republicans leading the two chambers of the General Assembly.

The three judges — Caldwell and Burke are Democrats and Foster is a Republican — ruled unanimously against the portion of a special-session law last year that would have merged the five-member elections board with the ethics commission.

The law, adopted in a special session shortly after Cooper defeated Republican McCrory in the elections, altered a longstanding process that gave the governor the power to appoint three members from his party to preside over elections as well as two members from the other party. Instead, the two boards would be merged into one evenly divided between the political parties and between gubernatorial and legislative appointments.

The judges said the elections board and ethics commission fell in the realm of the executive branch.

“The governor’s inability to appoint a controlling number of members of the new state board means that the legislature retains control over that board and can prevent the governor from taking action,” the judges ruled. “Because they reserve too much control in the legislature — and thus block the governor from ensuring faithful execution of the laws — the court concludes that the board of elections amendments are unconstitutional.”

The judges, though, were divided on the remaining two questions, and not always along party lines.

Caldwell and Foster agreed that the state Constitution gives the General Assembly the power to advise and consent on the governor’s Cabinet appointees. Since the Senate has yet to turn down any of Cooper’s appointments, the two judges said the governor had not shown that lawmakers had violated the separation of powers between the executive and legislative branches.

It was not immediately clear if such an action were to happen, if Cooper could return to court and argue that he had been unable to carry out the duties of his office because he had been unable to put someone in a key administrative post.

Burke, a Superior Court judge from Forsyth County, issued his dissent in a four-page addendum to the ruling.

“It is with regret that I must dissent from my beloved robed brethren,” Burke said, arguing that the state Constitution should be construed to be a “limit on authority rather than a grant of authority.” Burke contended that even if the lawmakers had the power to decide who is part of the governor’s Cabinet, since no previous legislature has used that power, the question should be put before voters in a proposed constitutional amendment. That’s what happened when the voters granted the governor veto power, he said.

Foster, a Superior Court judge from Pitt County, dissented from Burke and Caldwell on the ruling against the personnel law change. In his dissent from his “learned colleagues,” Foster repeated an argument by attorneys for the lawmakers that nowhere does the state Constitution say the three separate branches of government are equal. He said he did not think Cooper had shown he would be kept from discharging the duty of his office by the change of status of employees in his administration.

“In the instant case, positions ranging from architects, nurses, maintenance managers and others are alleged to be so important as to justify allowing the unfettered right to terminate them at will, absent any showing that they would have even basic policy input into the administration of Governor Cooper, or that the retained individuals had any policy input in the administration of Governor McCrory,” Foster said in his dissent.